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August 20, 2011

"Normative Elements of Parole Risk"

The title of this post is the title of this important new paper about parole thoery and practice authored by Professor David Ball, which is now available via SSRN. Here is the abstract:

Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.

One way to answer this question would be to make our calculations more inclusive of all the costs and benefits of release and comparing them with the costs and benefits of retention. Elementary as this might seem, there is no analysis of costs and benefits in California beyond the requirement that any risk not be “unreasonable.”

But even if we could figure out costs and benefits with a greater degree of precision than is currently possible, quantification of the costs and benefits still does not tell us whether the risk is worth taking. This Essay proposes that our conversations about risk are not merely confined to bloodless, actuarial issues: they need to involve normative issues as well.

I propose, as a means of examining these issues, two contradictory mechanisms for pushing the normative issues to the fore, one systemic, the other individualistic. The systemic mechanism would answer the question by establishing hard numbers for release – such as population or percentage targets. This would push the system as a whole away from individual assessments towards decisions more in line with social costs and benefits. The individual mechanism, on the other hand, would account for the normative elements of parole release, leaving the decision to a body used to fact-intensive inquiries that require moral legitimacy: the jury.

Ultimately, these two proposals highlight the hybrid nature of parole – its mixture of risk and desert. By exploring these two proposals, I hope to deepen the conversation about ways in which the goals and objectives of parole determine the procedures and mechanisms of release.

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All this theorizing about making rational parole decisions may miss a more simplistic factor that explains a lot of what's going on. From the NY Times earlier this week, reporting on a study on parole in Israel:

"There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences. It was all about timing, as researchers discovered by analyzing more than 1,100 decisions over the course of a year. Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day. Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time. ...

"The benefits of glucose were unmistakable in the study of the Israeli parole board. In midmorning, usually a little before 10:30, the parole board would take a break, and the judges would be served a sandwich and a piece of fruit. The prisoners who appeared just before the break had only about a 20 percent chance of getting parole, but the ones appearing right after had around a 65 percent chance. The odds dropped again as the morning wore on, and prisoners really didn’t want to appear just before lunch: the chance of getting parole at that time was only 10 percent. After lunch it soared up to 60 percent, but only briefly. Remember that Jewish Israeli prisoner who appeared at 3:10 p.m. and was denied parole from his sentence for assault? He had the misfortune of being the sixth case heard after lunch. But another Jewish Israeli prisoner serving the same sentence for the same crime was lucky enough to appear at 1:27 p.m., the first case after lunch, and he was rewarded with parole. It must have seemed to him like a fine example of the justice system at work, but it probably had more to do with the judge’s glucose levels."